Council of Co-Owners of Forest Beach Villas Horizontal Property Regime v. Smith

Goolsby, Judge:

The issue presented in this appeal by the Council of Co-Owners of Forest Beach Villas Horizontal Property Regime in this foreclosure action brought by it against M. Daniel Smith and others is whether a purchaser of a condominium apartment at a foreclosure sale in an action brought to foreclose a lien for unpaid assessments is jointly and severally liable for assessments arising prior to the purchaser’s taking title at the foreclosure sale.

The Council of Co-Owners brought this action to foreclose its lien for unpaid assessments against Smith, the owner of an apartment at Forest Beach Villas. The respondent Arthur Leaman and the other respondent creditors who held a judgment lien that had been duly recorded prior to the Council of Co-Owners’ lien counterclaimed, asserting that their lien constituted a first lien on the subject property.

The circuit court granted Leaman’s motions for default judgment and summary judgment and issued an order of foreclosure and sale. Its order indicated that the purchaser at the foreclosure sale would not be liable for past-due sums assessed by the Council of Co-Owners. The Council of Co-Owners contends this was error, pointing to S.C. Code Ann. §§ 27-Sl^lOCb)¹ and 27-31-220² (1991). It asserts the only purchasers excluded from joint and several liability are purchasers at foreclosure sales brought by a mortgagee of any mortgage of record.

Although § 27-31-210(b) refers only to a purchaser at a foreclosure sale brought by a mortgagee of any mortgage of record, our inquiry does not stop there. Section 27-31-210(a)³ must also be considered. See Columbia Gaslight Co. v. Mobley, 139 S.C. 107, 137 S.E. 211 (1927) (separate statutes relating to the same subject matter must be construed together and effect given to each). The section expressly allows a lien for unpaid assessments “[to] be foreclosed by suit... in like manner as a mortgage of real property.” That is precisely what occurred here. The Council of Co-Owners foreclosed its lien by suit as though its lien were “a mortgage of real property.” Because the lien here was foreclosed by suit “in like manner as a mortgage of real property,” the purchaser of the apartment at the sale ordered by the circuit court enjoys the same protection that would have been afforded a purchaser thereof had the foreclosure sale been one as described in § 27-31-210(b), that is, a foreclosure sale of a mortgagee of any mortgage of record. See 4 S.C. Juris. Condominiums § 27, at 223 (1991) (“[I]f an apartment is purchased at foreclosure [brought by the council of co-owners] by any bona fide lien holder, such purchaser shall not be liable for the payment of any assessments accruing after the recording of the lien and prior to the date of the foreclosure sale.”). We therefore hold a purchaser of a condominium apartment at a foreclosure sale in an action brought to foreclose a lien for unpaid assessments is not jointly and severally liable for assessments arising prior to the purchaser’s taking title at the foreclosure sale.

Affirmed.

Littlejohn, Acting J., concurs. Gardner, J., dissents in a separate opinion.

1 Section 27-31-210(b) provides in part:

Where the mortgagee of any mortgage of record or other purchaser of an apartment obtains title at the foreclosure sale of such a mortgage, such acquirer of title ... shall not be liable for the share of the common expenses or assessments by the co-owners chargeable to such apartment accruing after the date of recording such mortgage but prior to the acquisition of title to such apartment by such acquirer. Such unpaid share of common expenses or assessments shall be deemed to the common expenses collectible from all of the apartment owners, including such acquirer____

2 Section 27-31-220 provides in part:

The purchaser of an apartment (other than a purchaser at a foreclosure sale as described above in § 27-31-210(b)) shall be jointly and severally liable with the seller for the amounts owing by the latter under § 27-31-190 up to the time of the conveyance, without prejudice to the purchaser’s right to recover from the other party the amounts paid by him as such joint debtor.

3 Section 27-31-210(a) provides in part:

All sums assessed by the administrator[ ] or the board of administration[ ] ..., but unpaid, for the share of common expenses chargeable to any apartment shall constitute a lien on such apartment prior to all other liens except only ... (ii) mortgage and other liens, duly recorded, encumbering the apartment. Such lien may be foreclosed by suit by the administratorf] or the board of administration[ [¶]... in like manner as a mortgage of real property.